We take for granted that political dialogue depends upon shared knowledge, yet we rarely consider the role of scholarship in providing such knowledge and how the law both facilitates and restricts it. Robert C. Post, in his new book Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, meticulously examines the values of the First Amendment and the different functions of speech to show how courts have misunderstood academic freedom.
At the heart of Post’s argument are two constitutional values, democratic legitimation and democratic competence, that initially seem at odds with each other. The former refers to the First Amendment’s guarantee that we are all equally entitled to speak, while the latter refers to the role of experts in public discourse, ensuring that what is spoken is sensible and factually accurate. Demonstrating that these values are in truth compatible, Post advocates a new jurisprudence that takes them both into account. Editorial assistant Kip Hustace asks Post about the independence of disciplinary knowledge from state control, the boundaries of public discourse, and how academic freedom can best be realized.
Kip Hustace: What prompted you to write Democracy, Expertise, and Academic Freedom?
Robert Post: I felt impelled to write the book when I began to appreciate that many seeking to advance a public agenda deeply disrespect expert knowledge. In the absence of shared knowledge and fact, political discussion can become merely conflictual. Studying such contemporary debates as those on climate change, abortion, smoking, or obesity, I noticed that First Amendment protections can function to debase knowledge into mere opinion and thereby to undercut the very political conversation that the First Amendment otherwise fosters. I was curious to explore how constitutional protections for expert knowledge can be reconciled with the safeguards for public debate that are at the core of the First Amendment.
KH: How can the First Amendment’s commitment to maintaining the equal status of speakers in public discourse contribute to the disdain of expertise?
RP: Because in a democracy all speakers have equal claim to influence public opinion, the First Amendment requires that all speakers in public discourse be accorded equal status under the law. Consequently the state is precluded from distinguishing expert opinion from lay opinion.
Outside public discourse, by contrast, the state typically vouches for the expertise of those who possess specialized knowledge, such as doctors or lawyers. The law holds such experts accountable for maintaining professional standards; they are charged with malpractice when they give incompetent advice to patients or to clients. Doctors or lawyers who give incompetent advice in public discourse, on the other hand, are constitutionally immunized from liability.
Because the First Amendment precludes the law from vouching for the authority of expertise in public discourse, such expertise is undermined and can easily come to seem politicized.
KH: How then can we affirm citizens’ need for relevant and competent information?
RP: There are many ways to meet society’s need for relevant and competent information. The state can provide such information, either directly or indirectly, through state-subsidized institutions like universities. Universities typically vouch for the expertise of their faculty: an astronomer who claims that the moon is made of green cheese cannot be disciplined by the state if he publishes this conclusion in the New York Times, but he can be denied tenure at a state university if he publishes this conclusion as a result of his professional research.
The Freedom of Information Act can be made more robust as well: at present compliance with the act is spotty and reluctant, and exceptions to the Act’s disclosure requirements are broadly interpreted.
KH: You distinguish three possible purposes of the First Amendment: to allow truth to emerge from competition between ideas, to encourage individual self-fulfillment via expression, or to facilitate communication necessary for self-governance. While acknowledging the merit of the first purpose, which is embodied by the notion of the ‘marketplace of ideas,’ you quickly reveal its incompleteness. Why has the ‘marketplace’ hypothesis commanded such sustained respect in our jurisprudence, given the numerous shortcomings that theorists have pointed out?
RP: The ‘marketplace of ideas’ theory has a compelling intellectual pedigree, stretching back to John Stuart Mill and Oliver Wendell Holmes, Jr. William James spoke of the “cash value” of an idea. The metaphor of the marketplace nicely captures the libertarian, entrepreneurial, and economic sensibilities of Americans as well as the spirit of openness that must accompany critical thought. Despite these virtues, it is an incomplete description of the creation of expert knowledge. It entirely obscures the elements of disciplinary authority that always underpin expertise.
KH: You write that the production of disciplinary knowledge should remain “at least partially independent from state control.” Are the courts the primary custodians of this principle, or are there other mechanisms by which we ensure that expertise does not rely on the state’s conception of the truth?
RP: The book focuses on the practice of constitutional decision-making by courts and explores how courts can help to preserve the partial independence of knowledge practices from political control.
Sustained independence of these practices relies on the integrity of professionals who engage in them and on professional standards that reward excellence and competence. This independence can also be recognized by the state in non-judicial contexts. For example, when the government relies on panels of independent experts to award research grants, it demonstrates respect for the independence of expert knowledge.
KH: Do questions pertaining to freedom of behavior at all coincide with those concerning academic freedom?
RP: This is a good question that the book does not address. There are many regulations of behavior within the academy that do not impinge on academic freedom; rules that forbid fraud or harassment are obvious examples. On the other hand some regulations, such as those created by Institutional Review Boards to review research to ensure that it does not harm persons, do raise complex and contested questions of academic freedom.
KH: You observe that it can be worth restricting speech in non-public discourse to protect listeners’ dignity (i.e. from libel or from malpractice), yet you also suggest that it is worth protecting artistic and scientific expression even when it is non-public and only indirectly influences public opinion. What differentiates public discourse from non-public discourse?
RP: This is a complicated matter, about which I have written a fair amount. Suffice it to say that in Democracy, Expertise, and Academic Freedom I use the concept of public discourse to designate those speech acts that we as a society deem necessary to protect in order to ensure the free formation of public opinion.
Many speech acts have nothing to do with the formation of public opinion. Physician-patient communication in the practice of medicine is an obvious example. We also perceive that many speech acts are within what I call “managerial domains,” which is to say that their regulation is necessary in order to achieve organizational ends. Examples include speech within schools, bureaucracies, courts, and prisons. Because such speech is regarded as outside public discourse, it can be regulated in ways that are inconsistent with the free formation of public opinion.
KH: How do courts determine what speech is necessary for the free formation of public opinion?
RP: The Supreme Court has said that the contours of public discourse “must be determined by [the expression’s] content, form, and context . . . as revealed by the whole record.” This is to say that speech acts within public discourse do not possess some common identifiable property. The boundaries of public discourse are not set by objective properties of the world but instead by normative legal judgments applying the value of democratic legitimation. Courts ask whether the application of this value justifies attributing to particular speech acts the constitutional protections that characterize public discourse. Sometimes such judgments are made retail. For example, because public opinion is constituted within the public sphere and because media are the structural underpinnings of the public sphere, communications within mass media are presumptively deemed within public discourse.
KH: Do the courts bear responsibility to delineate boundaries between public and non-public discourse, or could that responsibility lie elsewhere?
RP: The book is an attempt to theorize judicial protections for freedom of speech; it therefore uses the concept of public discourse as a guide for judicial decision-making. It is important to understand, however, that judicial decisions in effect reinstitutionalize social norms that are created by the ambient society. When courts are working properly, they hold a mirror to the larger society. This is why, for example, the boundary between public discourse and nonpublic discourse looks very different in the democracies of Western Europe than it does in the United States.
KH: What is the most striking difference between Western Europe and the United States in terms in this regard?
RP: Allowing citizens to participate in the formation of public opinion is an important way by which states realize the value of democratic legitimation. The greater the mistrust of government, the greater the need for democratic legitimation. The government of the United States is far more mistrusted than the governments of Western Europe. We therefore have greater need to reinforce the value of democratic legitimation by allowing citizens broader scope to participate in the formation of public opinion. Consequently many forms of speech that are routinely suppressed in Western Europe, ranging from hate speech to blasphemy to seditious libel, are protected as public discourse in the United States.
Robert C. Post is Dean and Sol & Lillian Goldman Professor of Law at Yale Law School.
Kip M. Hustace is Editorial Assistant at Boston Review.